Question: My husband and I have been married for several years and have young children. We are buying a new home and he has decided he wants to do it in his sole name as it is easier for him to do the paperwork because he works in the city, near to our lawyers. I have not worked since we had the children and I have no problem with his plan. In any event, we have prenuptial agreement. However, my husband's bank, which is lending him the money, says I must take independent legal advice and sign a consent form. Is this necessary?
Answer: It is usual for a lender to request this. The fact that there is a prenuptial agreement may be taken into account by a divorce court should you end up there, but it is of no interest to your husband's lender.
The lender will be concerned to ensure that you will not claim any right of occupation or interest in the property should your husband default on the mortgage and possession proceedings prove necessary.
By signing an occupiers consent form you agree to give up or postpone your rights of occupation in favour of your husband's lender. Indeed the lender will wish to be sure that you fully understand the situation so that at some stage in the future you cannot allege that your signature to the occupiers consent form was obtained by duress or under pressure. That is why you have been asked to obtain independent legal advice. If you do not take such advice then the lender may very well not proceed with the mortgage to your husband.
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